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Court of AppealPartially AllowedCivil Appeal from High Court Civil Appeal No 1430 of 1983· [1992] KECA 48 (KLR)

Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR)

Court of Appeal
15 December 1992
JGJ.E GicheruACA.M CockarMMM.G Muli
2,165 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a Kshs 100,000 damages award to Kshs 25,000, ruling that breach of contract without proof of actual loss earns only nominal damages.

What this practically means

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Executive summary

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This Court of Appeal judgment disposed of an appeal against a High Court decision (Aganyanya J, 27 June 1984) in a suit framed both in breach of an oral contract and for the value of goods delivered. The respondent company agreed orally to supply and install telephone equipment in the appellant's Thika hotel for Kshs 274,200/-. It delivered equipment worth Kshs 151,050/- on 13 April 1981 against a delivery note signed by the appellant's General Manager, and later performed additional installation work at the appellant's request, but was never paid. The trial judge awarded the respondents Kshs 151,050/- as the value of the goods delivered plus Kshs 100,000/- general damages for breach. On appeal, two issues emerged: proof of the value of the goods delivered, and entitlement to general damages. The court held the value claim was proved by ample unchallenged evidence (the appellant even conceding the figure from the bar), and that the respondents, having elected their specific claim, were entitled to judgment on it. On damages, the court reaffirmed the distinction between general and special damages as one of pleading and evidence: the respondents did not plead special damages and could not quantify the loss from the breach, so the trial judge erred in awarding general damages based on speculation that the respondents were kept from other contractual work. Since breach was proved but loss was not, only nominal damages were available; the court substituted Kshs 25,000/- nominal damages, drawing on the House of Lords definition in 'Medina' and the 'Mediana'. The appeal was allowed only to that extent and otherwise dismissed with half costs to the respondents.

Key legal issues

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01

Proof of the claim for the value of goods delivered

Holding

The award of Kshs 151,050/- as the value of the goods delivered was justified on the evidence; grounds 1, 2 and 5 failed.

Reasoning

The respondent's evidence of delivery on 13 April 1981 against a delivery invoice signed by the appellant's General Manager was ample, unchallenged and uncontroverted. Counsel for the appellant conceded from the bar that the value of the equipment was that sum. The respondents having elected to sue for the value of goods delivered and for breach of contract were entitled to that claim.

p. 2
02

Entitlement to general damages for breach of contract

Holding

The trial judge's award of Kshs 100,000/- general damages was set aside because loss was not proved; Kshs 25,000/- nominal damages substituted; grounds 3 and 4 succeeded.

Reasoning

The distinction between general and special damages is a matter of pleading and evidence. The respondents did not plead special damages and did not quantify the loss flowing from the breach. The trial judge misdirected himself by speculating that the respondents were kept away from other contractual work. Since breach was proved but loss was not, only nominal damages were available, assessed at Kshs 25,000/-.

p. 3
03

Liability for breach of the contract

Holding

The appellants, not the respondents, were in breach of the contract.

Reasoning

The respondents delivered the equipment and performed additional installation work at the appellants' request, were ready and willing to complete, and made numerous visits and calls seeking payment. The appellants failed to honour their part of the contract and were in breach.

p. 3

Legal principles established

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  • A plaintiff who elects to sue for the value of goods delivered plus breach of contract is entitled to judgment on that specific claim as elected.
  • General damages are awarded for loss the law presumes to result from infringement of a legal right; special damages are the precise pecuniary loss specifically pleaded and proved - where actual loss is not proved but a right is infringed, only nominal damages are available.
  • Where breach of contract is proved but the actual loss flowing from it is not proved, the remedy is nominal damages, not general damages.

Court orders

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  1. 1.The award of general damages of Kshs 100,000/- is set aside and substituted with an award of Kshs 25,000/- nominal damages
  2. 2.Subject thereto, the appeal is dismissed with half costs to the respondents
On appeal from
High Court
High Court Civil Appeal No 1430 of 1983
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (superior court) under the Court of Appeal's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR)", Case Analysis (1992). Civil Appeal from High Court Civil Appeal No 1430 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/48/eng@1992-12-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.